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The L-1 visa is a nonimmigrant visa that allows an individual to transfer from their company abroad into the parent company or an affiliate or subsidiary company in the United States. There are two types of L-1 visas that an individual may apply for. The first is the L-1A visa, which is meant for employees with managerial or executive positions. The L-1A visa is first valid for 5 years and can be extended twice for 2 years each. Thus, the L-1A visa can be valid for up to 7 years. The second type of L-1 visa is the L-1B visa. This visa is meant for individuals with specialized knowledge and is first valid for 3 years. The L-1B visa may be extended once for a 2-year period. Time spent abroad and not in the United States does not count towards the duration of stay for L-1 visas, and employers must apply for an extension based on the individual’s travels for the time to be recaptured.
L-1 visas allow for foreign employees to contribute their expertise and knowledge to the United States branch of their employer. This also allows companies to make sure that all of their international branches share the same processes and mutual goals.
The family of L-1 visa holders, including children and spouses, may come to the United States with an L-2 visa. Unlike many other temporary stay visas for nonimmigrants, spouses in the United States with an L-2 visa are able to be authorized for employment.
In order to be eligible to apply for the L-1 visa, there are a number of qualifications that an employer and individual must meet.
To qualify for an L-1 visa in general, the employer must meet two requirements. First, there must be a qualifying relationship between the United States employer and the employer abroad. This means that there must be a parent and subsidiary or branch, or affiliate relationship between the two entities.
There are three ways in which a parent and subsidiary relationship may take place, including when one of the entities owns greater than ½ of the other or owns less than ½ but controls the other, or, when one entity is a 50% partner of the other in a joint venture (only if the parent entity has the same amount of control or venture veto power) (2). Franchise relationships are not considered to be a parent and subsidiary relationship for the sake of an L-1 visa unless the franchise agreement involves qualifying proportions of ownership (3). The United States Citizenship and Immigration Services (USCIS) looks for proof of these relationships. For the case of a parent and subsidiary relationship, supporting documentation can include shareholder agreements that establish a controlling interest or voting proxies, and other evidence of control and ownership.
A parent and branch relationship, or a branch office, may be defined as a separate office or division of one single company that operates in a different location. If the United States petitioner is the branch, the office should be registered as a foreign corporation that can operate within the United States. Documentation that can be used to prove this type of relationship includes a state business license which shows that the foreign corporation is allowed to operate within the United States, copies of the 1120-F tax form, the Tax Return of a Foreign Corporation, the quarterly tax return which lists the branch as the employer, or any type of state tax form which can show that the petitioner is a branch of a foreign employer.
The third qualifying relationship is the affiliate relationship, including when there are two subsidiary companies that are controlled and owned by the same parent, two entities that are equally owned and controlled by a group, and some qualifying multinational accounting firms. Here, the United States Customs and Immigration Services (USCIS) will look for evidence of ownership and control, and when applicable, proof of equal ownership between individual owners. The rules for qualifying accounting firms are much more strict; the firm must provide accounting, managerial, and/or consulting work. The firm must also market its services under a name that is recognized internationally and must be operating under an agreement with an international coordinating organization. The member accounting firm must own and control the international coordinating organization.
Though this relationship does not have to have existed throughout the transfer employee’s entire time with the employer, this relationship must be in place at the time of filing the L-1 petition. Likewise, there must be a foreign entity continuing business while the L-1 visa remains valid. In that case, the foreign entity does not have to be the same one through which the L-1 transfer employee originally applied. As long as a qualifying relationship continues to exist, a restructuring event such as a merger, acquisition, or spin-off should not affect the validity of the L-1 visa.
There are also qualifications for the employee. The employee must have been in an executive, managerial, or specialized knowledge position with the same foreign company full-time for at least a full year within the last three years in order to qualify for the L-1 visa. Any time that the employee spent in the United States does not count towards the 1-year requirement. But, the employee may have remained continuously employed abroad by a foreign country if they remained in the United States for greater than a few weeks at a time and maintained the status of nonimmigrant (not including B-1 and B-2 visas). Two periods of abroad employment separated by a stay in the United States would apply if the stay was meant for a training, a conference, or a trip for the foreign company. Likewise, the 1 year of experience with the foreign company does not have to be ongoing at the time that the petition is submitted, the employee may be working for a different company in a non-qualifying position as long as the 1-year experience has been within the last three years.
However, the employment does not count if it was part-time, even for multiple years. An exception can be made for an employee who worked for numerous affiliated companies part-time, whose hours were the same or exceeded the normal amount of a full-time employee.
As mentioned above, the transfer employee must have held a managerial or executive position, or a position with specialized knowledge. While the type of work that the employee engaged in abroad matters for the criteria of the L-1 visa, the same type of work does not need to be completed in the United States, though it is common (4-5). If the transfer is for a new office petition, however, the transfer employee must have managerial and executive background abroad if their position in the United States relates to one of those positions as well. Though, when the position abroad and the position in the United States are greatly different, the United States Citizenship and Immigration Services (USCIS) may exercise more scrutiny on the petition and the qualifications of the transfer employee. Thus, in the situation where a transfer employee will be working in a different position in the United States than abroad, it should be shown how the transfer employee will use their previous knowledge to best help operations in their new position. For example, if an employee with specialized knowledge is meant to come to the United States for a managerial position, the employer must demonstrate how the transfer employee will use his specialized knowledge while in a managerial role.
The L-1A visa is specifically meant for transfer employees who will primarily be working in managerial or executive roles while in the United States. To be considered to be one of the two roles, the individual must not be engaging in day to day activities to produce a service or product, they must be managing the day to day activities. They must also fulfill the criteria for a managerial position or executive position, the criteria cannot be mixed. Typically, it is easier to prove that an individual will be in a managerial or executive capacity within their role if there are many subordinate employees.
The executive position is broader than that of a manager. The position includes a higher level of responsibility and the directing of many departments, business units, and divisions. By definition, an individual in an executive position must direct management or a major function/component of the entity, be in charge of identifying the objectives and other policies, have the power to make a wide range of decisions on their judgment, and they must only be supervised by stockholders, a board of directors, or executives of a higher level. Thus, an executive in comparison to a manager should have the power to set budgets, fire and hire people, decide on goals and other programs, and manage a large amount of the company via subordinate workers while only reporting to another individual in a senior executive position. The individual who is submitting the petition must be able to prove that the transfer employee is in fact an executive. They must be able to specify the executive’s exact duties to the company or large department’s objectives.
The position of manager is defined as an individual who controls the activities of a specific department or smaller part of the company via subordinate individuals for whom the manager may also make or recommend changes in wage, position, and other personnel actions (website). There are a few different types of managers, including a manager of other workers and a function manager. A manager of other workers is specifically responsible for watching over and controlling subordinate individuals (these individuals do not need to be employees of the company, but can also be employees of an affiliated company or contractors) while a function manager manages activities related to a specific function. Function managers may not have hiring or firing power, but they exemplify managerial authority through their typical ability to use and keep contractor services. In many cases, the criteria for L-1A nonimmigrant managers may also apply for multinational manager immigrant petitions.
The L-1B visa is specifically meant for individuals with specialized knowledge, who plan to apply their knowledge from abroad to the United States operations of an entity. The term “specialized knowledge” is admittedly unclear by the Department of State (DOS) and there have been many attempts to create a more specific definition. As of 2015, specialized knowledge includes individuals who 1.) hold specific knowledge on a company product from an international standpoint or who 2.), have greater knowledge than typically found in workers of the employer of a specific process or procedure uncommon for the industry.
For either definition, the United States Citizenship and Immigration Services (USCIS) requires that the transfer employee’s knowledge be compared to that of others; thus, details on how the employee acquired the knowledge and why it would be difficult for others to learn the same information are useful for the petitioner’s statement. Other documentation that can be used on top of this statement includes a detailed background of the transfer employee to illustrate the total years it took for the employee to acquire the knowledge, the transfer employee’s impact on the entity (business plans, contracts, budgets, etc.), details on how the transfer employee’s knowledge has already benefited the entity, and more.
Originally due to concerns about L-1 visa holders replacing United States workers, L-1B specialized knowledge workers may not be stationed at a third-party worksite if they will be controlled by the other employer or if they will be used as hired labor for the other employer and not for the use of their specialized knowledge. Thus, the petitioner must prove that if the transfer employee is placed on a third party site that they will adhere to these criteria.
In order for an extension to be granted, the extension must be filed for at least 6 months before the visa expires. Family members with L-2 visas may also apply for extensions. For both L-1 and L-2 visa holders, they must be in the United States when their extension is granted. Once the petition has been filed and the original L-1 visa has expired, the transfer employee will have 240 days of employment authorization added on until their full extension has been granted. During this period, individuals should not travel outside of the United States as their L-1 visa is no longer valid.
Individuals with L-1 visas have a grace period of 10 days before their employment starts and after their employment ends. They may not work during these periods. Individuals should make sure that their I-94 records reflect this grace period. Individuals may also use another grace period for if their employment ends before their duration of stay ends. They may stay for a maximum of 60 days or for the remaining length of their visa, whichever one is shorter, but only once.
It is possible to acquire an L-1 visa having been a contractor hired by the abroad company. This is easiest when the employee was considered to be an independent contractor or had created their own contracting company for their work. If the employee was a contractor not under one of these two conditions, the contractor employee must have been working only for the company abroad on a continuous basis and the company must have been able to completely control the employee. In this situation, however, the United States Citizenship and Immigration Services (USCIS) may decide that the contractor was an employee of the consulting company they were based with and not the other company, or, that there was no working relationship between the contractor and the foreign company. If an employer is petitioning for an L-1 visa under these circumstances, they must be sure to illustrate the exclusive relationship between the company and the contractor and that the company could control the contractor, including through hiring and firing.
A transfer employee may come to the United States to work for an office that has been open for less than a year. However, there are more requirements that must be met in this situation, and petitions are typically judged in a harsher manner. There must have been ongoing operations and regular services offered by the office for an office to be considered for the petition. Criteria such as the total number of employees, date of establishment, income, contracts, details of services offered, and other information will be considered by the United States Citizenship and Immigration Services (USCIS) when deciding whether or not the petition is for a new office. Petitioners should be sure to include a detailed explanation of their business plan, including lists of services, intended personnel, and timelines of growth (26-8). The office must also be able to prove that they have a physical location and that their foreign counterpart remains. An L-1 petition for a new office is limited to just one year at first, but it is possible to file for an extension as long as the foreign counterpart still remains and the new office has been successfully operating and may continue to be viable.
It may also be more difficult for smaller companies to transfer employees with L-1 visas as it is harder to establish the relationship between the entity abroad and in the United States. Likewise, the United States Citizenship and Immigration Services (USCIS) may question the lower number of employees, revenues, and profits of the company and thus the need and availability to transfer an employee. Smaller companies applying for an L-1 transfer should be sure to detail their credibility by explaining their services and their relationships with better-known companies.
In order for a Mexican or Canadian employee to be transferred using an L-1 petition, there must not be an ongoing labor dispute and the transfer employee’s employment must not negatively impact the dispute. If these two conditions are met, the L-1 petition could be denied, or if it has already been approved, it could be suspended.
The employer must file the paperwork necessary for an L-1 petition, preferably in black ink. The employer’s representative should begin with the G-28 form, or, the Instructions for Notice of Entry of Appearance as Attorney or Accredited Representative, which proves the eligibility of the representative to represent the employer (website). Next, the I-129 form, or, the Petition for a Nonimmigrant Worker must be filled out with the information of the petitioning company, including their name, address, and FEIN. The proper visa, L-1A or L-1B, should be selected. Next, information about the transfer employee should be filled out, including their name, home country, and passport information (note that their passport must be valid for at least 6 months after the petition expires). If the petition is filed while the transfer employee is in the United States for a business trip, their I-94 record must be submitted as well. The employer must also include information on the consulate or port of entry. Next, details on the terms of employment should be filled out, including worksites, wages, and other information about the employer’s business. The representative will then need to sign the petition, and the preparer must sign the preparer’s declaration.
Supplementary documentation on the foreign entity and the United States entity should be provided, including information on the relationship between the two. Next, the company must prepare the United States Company Statement on their own letterhead. It must be signed by the representative. This statement should include an introduction, details on the petitioner, the reasoning behind transferring the employee, the duties of the employee’s new position, the employee’s background and experience, the requested authorization dates, sources and payment, and finally, a conclusion. The foreign entity must also complete a statement in order to prove that the employee has the required 1 year of work experience abroad. It also should be on the company’s letterhead and signed by an official. Large and small companies may also submit a separate statement written by an authorized official qualifying their relationship and their ownership and control. Smaller companies should also include additional documentation, such as stock ownership or tax returns (43). For new office petitions, this statement should also include information on ownership and control as well as documents such as a business plan and financial resources.
It costs $460 to file the basic I-129 form. In order to change the status or extend the status of an individual, the employer must also file the I-539, or, the Application To Extend/Change Nonimmigrant Status and pay the required fee of $370. If it is the employer’s first time filing an L-1 petition for a new worker, they must pay a $500 fee for fraud prevention and detection. If an employer has more than 50 employees and 50% of them are of L-1A, L-1B, or H-1B status, they must pay a fee of $4,500. The I-907 form can be submitted with the L-1 petition or afterward if the employer wishes to expedite the L-1 petition process. If completed, this form and the required fee of $1,225 will expedite the process from about 30 days to 15 days.
The employer should submit two copies of the petition (in duplicate) to the United States Citizenship and Immigration Services (USCIS) service center with jurisdiction over the place of employment. The copy will be sent by the United States Citizenship and Immigration Services (USCIS) to the Department of State to be uploaded into the Petition Information Management System (PIMS). When the petition has been approved, the United States Citizenship and Immigration Services (USCIS) will send an I-917 form, or, a Notice of Action, to the employer’s representative as well as a copy to the employer to notify them of its decision.
Once the petition has been approved, the worker may apply for an L-1 visa. The children and spouse of the worker may also apply for an L-2 visa. To do so, each applicant must complete the DS-160 form, or, the Nonimmigrant Visa Application, online. They must each have a passport with at least two empty pages that will be valid for 6 months past the application date, two photos of themselves, and a statement written by the petitioner stating that the worker will continue to be employed (if changing status). If family members are applying, there must be evidence of the familial relationship. Applicants must also pay the visa application fee and reciprocity fee if necessary. Applicants should contact their consulate or embassy to see if there are more requirements or a specific order in which forms must be submitted, as this can vary by location. Applicants will also need to schedule an interview appointment, for which they must be sure to bring any necessary documents.
Employers who hire a large amount of L-1 employees may apply to use a blanket L petition. With a blanket petition, some transfer employees are able to apply for their visas without being required to wait for the United States Citizenship and Immigration Services (USCIS) to approve the individual petition. To qualify for the use of a blanket L petition, the company which is petitioning in the United States and all other related entities must be operating in commercial services or trade, have one office that has been open for greater than a year in the United States, have at least 3 branches (domestic and international). Finally, they must have had at least 10 L-1 petitions approved within the last year and have total annual sales of their United States branches of no less than $25 million or have at least 1,000 employees in the United States. Employers may apply for a blanket L petition through the United States Citizenship and Immigration Services (USCIS) with a G-28 form, I-129 form, L supplement, supporting statement from the company in the United States, and a list of all companies that qualify under the blanket statement.
The processing timeline for the L-1 visa greatly varies depending on a variety of factors. The United States Citizenship and Immigration Services (USCIS) processing time is typically 30 days but can take more time if a request for evidence is used. However, the employer can also apply for expedited processing, shortening the process to 15 days.
The visa application process may also take a varying amount of time, depending on the time it takes to schedule an interview for the visa application (which may change depending on the time of year, type of visa, and location) as well as if the application requires further processing.
There are many fees that must be paid in order to successfully apply for the L-1 visa by both the employer and the individual applicant.
Base Total: $460
Total: $190
There are many documents that are necessary to apply for an L-1 visa for both the employer and applicant.
For the petition, the employer must have the following documents:
For the visa application, the transfer employee must have the following documents:
While the L-1A and L-1B visas have many similarities, there are many differences between the two besides the intended occupation, particularly in relation to the transfer employee’s long term goals, that must be considered.
While the L-1A visa is valid for a maximum of 7 years (3 initial years with the possibility of 2-year extensions twice), the L-1B visa is valid for a maximum of 5 years (3 years initially with only one 2 year extension). There are a few exceptions to these time limits, including if the employee is working part-time or intermittently (if the employee was not in the United States on a continuous basis as they were working seasonally or less than 6 months per year).
L-1 visa holders cannot receive extensions under the American Competitiveness in the Twentyfirst Century Act (AC21), under which H-1B visa holders can extend their status past 6 years and can change jobs before they receive a green card. Instead, in order for a transfer employee to extend their stay, they must apply for permanent residency or apply to change their status before their L-1 visa length of stay runs out.
L-1B visa holders can change their status to another visa as long as they meet the requirements, such as the H-1B visa which they may use for a maximum of 6 years. However, the time spent in the United States on the L-1B visa will apply towards the H-1B visa. Dual intent, meaning when an individual is in the United States on a nonimmigrant visa but can take steps towards submitting an immigrant petition, a change of status, or other actions to become a permanent resident, can only be done on an H-1B or L-1 visa (20-1, website page 11). While petitioning to change status to permanent residency, L-1 visa holders and L-2 visa holders may travel internationally (24-5). If an L-1 visa holder is not able to extend their stay by changing status, they must wait for one year after returning home to apply for L-1 status again.
If an L-1A visa holder has used all of the available time on their visa and the employer still wishes to keep them in the United States, they can apply for a permanent residence with an EB-1 visa under the category of multinational manager. In general, the United States Citizenship and Immigration Services (USCIS) is much stricter with their judgments of EB-1 multinational manager visas than L-1 visas. In order to fit the criteria for an EB-1 visa, however, the worker must have had at least one year of managerial or executive experience abroad within the three years before they transferred to the United States.
It is also possible to change status from an L-1B to EB-1, especially considering that the employee may have managerial duties on top of their other responsibilities. The United States Citizenship and Immigration Services (USCIS) will use the information provided on the EB-1 petition to make their judgment. Thus, in this case, it is not necessary to change an employee’s status from L-1B to L-1A in order to apply for an EB-1 visa, though the change in status could ultimately help the petition go through. According to the United States Citizenship and Immigration Services (USCIS), however, if the foreign entity no longer operates or is no longer related to the United States counterpart, the employee cannot change their status to EB-1. Likewise, only a United States citizen, corporation, or other entity can petition for an EB-1 status—a foreign corporation with a branch in the United States cannot.
The EB-1 visa does not require a labor certification application and thus tends to be a much quicker process than that for an EB-2 or EB-3 visa. Likewise, if the employee qualifies for a national interest waiver under the EB-2 visa, they also do not have to file a labor certification application, as their work is considered to be important and beneficial to the country. However, if the employee doesn’t qualify for either the EB-1 or the national interest waiver, the employer will need to file a labor certification application before moving on to the EB-2 or EB-3 application process. Thus, the process for either of these visas may take a much longer time as they are typically affected by immigrant visa retrogression, dependent on the home country of the employee. Immigrant visa retrogression is when there is greater demand for a type of immigrant visa than the number that may be supplied. Therefore, it may take months, even years to file for an EB-2 or EB-3 visa.
It is also possible to change from L-1B status to L-1A status, especially as it may be more beneficial if the employee and employer will apply for an EB-1 change of status in the future. Successfully filing a change of status from L-1B to L-1A will give the employee 7 additional years of nonimmigrant status. This time period gives a much greater cushion when applying for labor certification, and can help the employee achieve permanent residency before running out of time on their L-1 visa.
In the case that the job responsibilities of the L-1B worker change to primarily managerial duties, the employer must file an amended L-1A petition in order for the change in job to be authorized. When filed, the employee’s time in status is extended for a maximum of 7 years. In the case that the worker is promoted, the employer will also need to file an amended L-1A petition, but at least 6 months before the worker reaches their fifth year in the United States in order to reduce the chance of fraud. Change in status from an L-1B to an L-1A visa may also be argued under a re-characterization of the employee’s assignment if the employee performs not just specialized knowledge work, but also managerial tasks.
As mentioned above, the employer can file for a change of status from L-1B to EB-1 without first filing for an L-1A, though it is much more difficult to receive authorization. First and foremost, the United States Citizenship and Immigration Services (USCIS) may question why the worker is applying for a multinational manager category visa if they currently hold an L-1B visa meant for specialized knowledge workers. Likewise, the time it takes for a multinational manager and executive immigrant visa petitions to be processed is very long, even up to a year's length, as there is no premium processing that the employer can take advantage of. If the petition is denied, the employer will not be refunded the filing fees or any other legal fees.
There is no limit to the number of L-1 visas that can be issued, unlike the H-1B visa. There is also no limit on the number of L-1 employees a company can transfer.
Spouses with L-2 visas can receive employment authorization and work in the United States. Children, however, are unable to work until they change their status.
So far, there has been no order to change how L-1 visas are issued. However, employers and applicants should be aware of any changes that may occur in the future as there have been many other changes to visa protocols.
In recent years, the denial rate for L-1 visas has increased. In 2016, 15% of applications were denied but by 2019, that number rose to 28%. A growing number of applications have received requests for evidence (RFE). Thus, it is growing harder to successfully transfer an employee through the L-1 program. This makes it even more important to correctly fill out petition forms and provide the correct, supporting documentation to help your argument.